High Court: Attorneys Must Inform Defendants of Immigration Consequences

March 31, 2010

A fragmented Supreme Court issued its opinion in the case of non-citizen Jose Padilla, who followed his attorney's advice to plead guilty for marijuana possession and was subsequently deported. Padilla, born in Honduras, has lived in the United States legally for over 40 years and served as a member of the U.S. Armed Forces during the Vietnam War.

In Padilla v. Kentucky, the Court determined that trial attorneys have a constitutional obligation to inform their clients of the immigration-related consequences of a criminal conviction. The Court, however, did not throw out the petitioner's conviction based on ineffective assistance of counsel, setting aside the issue of whether Padilla was prejudiced by his counsel's shortcomings. Rather, the case was remanded to the Kentucky Supreme Court to resolve that question.

"It is our responsibility under the Constitution to ensure that no criminal defendant -- whether a citizen or not -- is left to the 'mercies of incompetent counsel,''' Justice John Paul Stevens wrote for the five-justice majority.

''To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation,'' Stevens wrote. ''Our long-standing Sixth Amendment precedents, the seriousness of the deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less."

Justice Samuel Alito, joined by Chief Justice John Roberts, concurred in the judgment, but disagreed that a defense attorney is obligated to inform a defendant what adverse immigration-related consequences might flow from a criminal conviction. Rather, Alito would relax the standard for criminal defense attorneys, merely requiring that they encourage defendants to consult with an immigration attorney as to those consequences.

Joined by Justice Clarence Thomas, Justice Antonin Scalia dissented, writing, "The Sixth Amendment guarantees the accused a lawyer 'for his defense' against a 'criminal prosecution' -- not for sound advice about the collateral consequences of conviction."

In a statement obtained by ACSblog, Elizabeth Wydra of the Constitutional Accountability Center (CAC) celebrated the Court's ruling, which, she said, "reaffirmed that the guarantee of fundamental fairness in our Nation's courts applies to non-citizens and citizens alike." Wydra, a frequent ACS participant, filed an amicus brief on behalf of CAC in the case.